Law and Development from the Ground Up: Bridging Health Care by the Sewa River

In Sierra Leone's rainy season, the Sewa River, feared by many locals for its powerful currents, floods over its banks separating entire villages from basic services. Konta health clinic in Kenema district operates near the shores of the Sewa, and during the six-month rainy season, five of Konta’s 17 dependent villages cannot access the clinic. If women in those villages give birth during the rains, they entrust care to traditional birth attendants; if children fall ill, they turn to traditional medicine, stockpiled drugs, and, often, prayer. As one woman explained during a recent community meeting in Konta, these are the only options, even if the all-too-frequent consequence is death. Hearing her account, it’s difficult not to feel a strong sense of injustice, even in an incredibly resource-constrained country like Sierra Leone. But is there a role for the law in remedying this situation?

The community around Konta has offered one compelling answer. Konta's residents have enacted a “bylaw” to improve clinic access as part of the government of Sierra Leone's community compact health intervention, in which community members work with health clinic staff to design and implement their own solutions to health problems. Under the Konta bylaw, all households around the clinic must make a small contribution (either in cash or in labor) to help construct a boat to transport pregnant women and sick patients across the Sewa river.

The Konta bylaw is one of dozens of “quasi-legal” commitments that have emerged quite unexpectedly across the four districts implementing the community compact intervention. While the intervention uses the construct of compacts – or “social contracts” – to stimulate clinic and community action, local level actors have added to this compact process by enacting their own set of rules to guide behavior in ways they deem important. Other communities have proposed regulations on local waste management and crafted punitive measures to obstruct drug peddlers. Such “quasi-law,” or “soft law,” falls short of the dictates of formal law – these laws are not officially enacted, nor are they enforceable in the formal legal system such as through recourse to the courts. Instead, they derive power in some of the other ways in which law has strength – by aligning with widely agreed social norms, enlisting social networks for enforcement, and leveraging the potential shame that would come with non-compliance.

These soft laws provide one response to the collective action and trust problems that others have identified as fundamental obstacles to development. David Booth from ODI and Duncan Green from Oxfam suggest that exclusive supply- and demand-side governance endeavors fail because “people aren’t prepared to take risks and bear the costs of working with others, unless they believe that everyone else will do so too.” If that is the case, then perhaps the local, public process of identifying problems and drafting a set of responsive rules can remedy deficits in trust and facilitate collective action.

The use of law to promote development has a long history, rooted in ideals of protecting individual freedom, enhancing equality, and increasing the ability of citizens to participate in and rationally configure social life. Yet beginning in the 1970s there was a growing disillusionment with the seeming lack of success in using formal law to promote development. In the decades that followed, law and development reemerged in different forms. From the 1990s on, there was an emphasis on top-down systems of constructing courts, training judges, and enacting constitutional reform, with varying success. Legal empowerment efforts have worked to democratize access to justice through use of community paralegals, but these efforts have primarily focused on solutions based in formal law. And other efforts emphasized states’ obligations to fulfill citizens’ human rights, including those to health; but this endeavor too has had challenges, particularly in the world’s poorest countries where states are particularly weak.

The experience in Sierra Leone reveals the potential utility of locally-designed and -responsive law in addressing mainstream development challenges. A formal randomized-controlled trial of the intervention is underway and will measure impacts on utilization and perceptions of health care delivery. Yet the early results show how communities have been using the dominion of law to make society legible, guide collective behavior, build trust, and promote broader social and economic goals. In Konta’s example, law emerges not separate from economic and political solutions to certain types of critical community problems, but rather as an instrument of those solutions. Konta is using this soft law to navigate an expansive river and connect communities to essential services. In the long run, broader structural answers – including those grounded in the formal law – will have to fully bridge that river and provide equitable health care.

Comments

A thought-provoking article... The Law and Development discourse has evolved over that last few decades in tandem with ideological developments in the global political economy. What has not been fully captured though by much of western jurisprudence and much of western legal scholarship is the role that communal rights play in promoting distributive justice and remedial justice, including the fashioning of the rule of law. When focusing on socio-economic developments in certain cultural settings and contexts of the developing world, much of the human rights debate often omits, either by design or by default, the issue of communal rights and responsibilities. There is a tendency to be pre-occupied with capitalist formations that gave birth to the legal theory underpinning individual rights and liberties.
Although the article highlights the virtues of applying some form of ‘soft law’, in essence much of what is termed ‘soft law’ here derives its legitimacy from the normative value system reflected in much of African customary law. On its own, a bye-law can only be valid if it derives its authority from a higher legal instrument such as a statute, subsidiary legislation or some form of discretionary power entrusted by legislation to an administrative authority.
By contrast, African customary law does not require such ‘formal’ legal structures to attain enforceability or justiciability. It remains enforceable in many courts of law, as long as it is not repugnant to natural justice, good conscience and equity. However, we are mindful that what constitutes ‘natural justice, good conscience and equity’ remains a separate discussion for another forum. Suffice it to say, African customary law not only embraces the notion of communal rights in the developing world, but it also advances the concept of individual and communal responsibilities. Now, the concept of responsibilities here should not be confused with the positivist notion of duties or obligations, say, at common law or under a statute. By contrast, responsibilities are driven more by value persuasions and traditions as opposed to the force or command of the State. And akin to this analysis of Africa customary law is the concept of Confucianism which holds that one should give up one’s life, if necessary, either passively or actively, for the sake of upholding the cardinal moral values of ren and yi.

Without exception to Sierra Leone, community by-laws across the African continent - and perhaps the world over - have always been community defined and community driven. Communities are often prompted by the need and demand for collective responsibility and action in solving common problems as they arise such as the case presented by this article. This is not new.

What is relatively new, however, is that in recent times (in post-war Sierra Leone) pressure has been mounting on traditional rulers at chiefdom and section levels to incorporate national laws centered on human rights and humanitarian values that are in turn driven by international laws and conventions to which Sierra Leone had subscribed. In this way, Sierra Leone fast becoming a legally globalized nation which is excellent; but this comes with the challenge of overcoming attitude and behavior gap between what the communities adopt as by-laws that they did not really initiate and the by-laws they define and initiate by themselves without an internationally supported development program from outside.

This gap is even more prone to showing up during in-depth research missions in communities that have adopted by-laws on harmful traditional practices (HTPs), especially practices relating to female genital cutting.

There are evidences of certain communities in the south and northern parts of Sierra Leone where by laws on HTPs have been adopted to appease social welfare authorities and NGOs providing material assistance to them without necessarily enforcing those laws.

Without exception to Sierra Leone, community by-laws across the African continent - and perhaps the world over - have always been both community defined and community driven. In this regard, communities are often prompted by the need and demand for collective responsibility and action in solving common problems as they arise such as the case presented by this article. This is not new.

What is relatively new, however, is that in recent times (in post-war Sierra Leone) pressure has been mounting on traditional rulers at chiefdom and section levels to incorporate newly passed national laws centered on human rights and humanitarian values driven by international laws and conventions to which Sierra Leone had subscribed.

In this way, Sierra Leone is fast becoming a legally globalized nation which is excellent. But this comes with the challenge of overcoming obvious attitude and behavior gaps between what the communities adopt as by-laws that they did note initiate and those by-laws they define and initiate by themselves without an internationally supported development program.

This gap is even more prone to show up during in-depth research missions in communities that have adopted by-laws on harmful traditional practices (HTPs), especially practices relating to female genital cutting. There are evidences of certain communities in the south and northern parts of Sierra Leone where by laws on HTPs have been adopted without enforcement only to appease social welfare authorities and NGOs providing material assistance to them without necessarily enforcing those laws.

Basically in rainy season we have found that most of the regions are suffering from various horrible diseases such as Diarrhea and Malaria; here also we have found people located in the bank of Sewa river are also suffering from the same problem; therefore authority passes several health care reform programs to repair and develop the current situation of health care system in the region.